Dec 2014
BRITISH VIRGIN ISLANDS
COMMERCIAL COURT
THIRD PARTY COSTS ORDER – WHETHER POWER TO PERMIT SERVICE OF APPLICATION OUT OF THE JURISDICTION – CPR 7.3(10) CONSIDERED – WHETHER NECESSARY FOR APPLICATION TO BE SERVED OUT IN ANY EVENT
In this case, the Defendants successfully resisted applications by the Applicant (a Panamanian company) to continue ex parte injunctive relief granted previously by the Court and to appoint a provisional liquidator over the Respondent company. Costs followed the event and were awarded against the Applicant. However, the Respondents’ case was that this order, as a practical matter would likely be worthless given that the Applicant was merely a shell entity registered overseas.
The Respondents applied for a third party costs order against the ultimate beneficial owner (the “UBO”) controller of the Applicant, on the grounds that he was the real beneficiary of the failed proceedings and the real party. This application was based on express powers in the Eastern Caribbean Supreme Court Civil Procedure Rules (the “CPR”) to make third party costs orders. However, since the UBO, like the Applicant, was resident outside the jurisdiction of the BVI Court, this necessitated an application for leave to serve the application out of the jurisdiction.